T-494-83
International Fund for Animal Welfare, Inc., Ste-
phen Best and Brian D. Davies (Plaintiffs)
v.
The Queen, the Minister of Fisheries and Oceans,
the Minister of Justice and the Attorney General
of Canada (Defendants)
INDEXED AS: INTERNATIONAL FUND FOR ANIMAL WELFARE,
INC. V. CANADA
Trial Division, McNair J.—Toronto, February 24,
25, 26, 27, 28 and March 3, 4; Ottawa, September
18, 1986.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of expression — Plaintiff Davies
advocating abolition of seal hunt — Using helicopters to ferry
media people to hunt scene contrary to Seal Protection Regu
lations prohibiting operation of aircraft over seals at low
altitude — Applications to obtain sealing access turned down
— Whether freedom of expression curtailed — Freedom of
expression including freedom of access to all information
pertinent to ideas or beliefs sought to be expressed, subject to
reasonable limitations — Purpose of legislation, to prohibit
unjustifiable interference with lawful activities of sealers,
valid — Collective governmental interest of protecting seals
and fundamental right of sealers to pursue livelihood out
weighing right of freedom of access to information — Canadi-
an Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 2(b), 24(1) — International Covenant on Civil
and Political Rights, 11976J Can. T.S. No. 47, Art. 19 — Seal
Protection Regulations, C.R.C., c. 833, ss. 5(a),(b), 11(2),(3),(6)
(as am. by SOR/78-167, s. 3).
Constitutional law — Charter of Rights — Limitation
clause — Regulations aimed at seal conservation and seal
fishery management — Impinging on right of freedom of
expression — Right outweighed by governmental interest in
protecting seals and sealers' right to pursue livelihood
Restrictions reasonable, justified in democratic society —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 1 — Seal Protection Regulations, SOR/64-443,
s. 17.
Fisheries — Seal Protection Regulations prohibiting landing
of aircraft near seals or operation of aircraft over seals at less
than 2,000 feet except with Minister's permission — Plaintiff
advocating abolition of seal hunt — Using helicopters to ferry
media people to hunt scene — Whether Regulations ultra vires
s. 34 Fisheries Act — Activities complained of within purposes
and provisions of Act — "Fishery" including sealers as per-
sons engaged in seal fishery — Fishery embracing marine
animals as well as business of sealing — Right to legitimately
exploit resource — Regulations within management and con
trol of seacoast fisheries — Ministerial discretion to refuse
sealing access permits properly exercised — Action for
declaratory and injunctive relief dismissed — Fisheries Act,
R.S.C. 1970, c. F-14, ss. 2 (as am. by S.C. 1985, c. 31, s. 1),
2.1 (as enacted idem, s. 2), 34 — Seal Protection Regulations,
C.R.C., c. 833, ss. 5(a),(b), 11(2),(3),(6) (as am. by SOR/78-
167, s. 3) — Seal Protection Regulations, SOR/64-443, s. 17.
The Seal Protection Regulations prohibit any person from
landing a helicopter or other aircraft within half a nautical mile
of any seal on the ice in the Gulf Area or Front Area or from
operating such aircraft over any seal on the ice at less than
2,000 feet unless on a scheduled commercial flight, except with
ministerial permission.
The plaintiff, Davies, has been adamantly committed to the
abolition of the seal hunt. In 1969, he broadened the base of his
attack by creating the International Fund for Animal Welfare,
Inc. (IFAW). Through IFAW, he enlisted the aid of the media
in spreading his message. IFAW used helicopters to ferry
media people to the scene of the hunt. The plaintiff was
charged with having violated the Regulations. Repeated
applications by IFAW to obtain sealing access for representa
tives were turned down.
The plaintiffs challenge the constitutional validity of the
Regulations. It is said that the Regulations deny the plaintiffs
their paragraph 2(b) Charter right of freedom of expression.
This right would include "freedom to seek, receive and impart
information and ideas of all kinds" through any form of media,
as stated in Article 19 of the International Covenant on Civil
and Political Rights. In the alternative, it is argued that the
Regulations are ultra vires section 34 of the Fisheries Act.
Held, the action for declaratory and injunctive relief should
be dismissed.
An expansive and purposive scrutiny of paragraph 2(b) of
the Charter leads to the conclusion that freedom of expression
must include freedom of access to all information pertinent to
the ideas or beliefs sought to be expressed, subject to reason
able limitations necessary to national security, public order,
public health or morals, or the fundamental rights and free
doms of others.
The initial test of constitutionality is whether the purpose of
the legislation is valid; the legislation's effects may be con
sidered only when the law has passed the first test: R. v. Big M
Drug Mart.
The purpose of the Regulations, as stated by the then
Minister of Fisheries, was to prohibit unjustifiable interference
in the lawful activities of the sealers. This was a valid purpose.
The Regulations, it was stated, were aimed at the conservation
and protection of seals and the proper management and control
of the seal fishery, having regard to the seal harvest in light of
its historic and traditional origins and the rights of those who
earned a living therefrom. However, the actual effect of the
regulatory provisions was to impinge on the plaintiffs' right of
freedom of expression.
The question then was as to whether those provisions fell
within the limitation clause in Charter section 1. There was no
compelling evidence that the Regulations were aimed at deny
ing access to the news media. The prohibition against landing
or flying an aircraft near any seal was justified by an intention
to stop the unregulated and hazardous practice of hunting seals
by aircraft, to prevent the dispersion of seal herds and the
disruption of the normal pattern of nursing behaviour. Safety
alone would necessarily impose some restriction of free access.
There was a fine line between the activity of searching for
information to mount an effective protest against a lawful
commercial activity and the act of protesting that activity at
the very scene of operations. The collective governmental inter
est of protecting both the seals and the fundamental right of the
sealers to pursue their livelihood outweighed the plaintiffs'
right of freedom of access to information. In the result, the
limitations prescribed by the Seal Protection Regulations are
reasonable in the circumstances and demonstrably justifiable
by the normal, perceptive standards of a free and democratic
society.
The plaintiffs' alternative argument, that the Regulations are
ultra vires in that they exceed the purposes and provisions of
the Fisheries Act, had to be rejected. There was ample evidence
to show that the full range of the activities complained of are in
fact within the purposes and provisions of the empowering Act.
The definition of "fishery" in the Act includes sealers as
persons engaged in the seal fishery. The law recognizes the
fishery as a natural and public resource that embraces not only
the marine animals themselves but the business of sealing in the
context of the right to legitimately exploit the resource in the
place where it is found. The Regulations were made for the
proper management and control of the seacoast fisheries and
for the conservation and protection of seals. They are therefore
intra vires Parliament.
Nor was there merit in the plaintiffs' contention that the
ministerial discretion to refuse them permits had been exercised
for an unauthorized purpose. The policy of the government was
to protect the sealers from interference by protesters. The
Minister laid down the policy that permits would not be issued
to persons or groups whose stated objective was to disrupt the
seal hunt. That policy was aimed at all active protesters and did
not single out the plaintiffs as a particular target of oppression.
The discretion was properly exercised having regard to the
purposes of the Act and its subject-matter in terms of manage
ment and control of the seal fishery.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Fowler v. The Queen, [1980] 2 S.C.R. 213; (1981), 113
D.L.R. (3d) 513.
CONSIDERED:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
18 D.L.R. (4th) 321; 58 N.R. 81; R. v. Oakes, [1986] 1
S.C.R. 103; Switzman v. Elbling and A.-G. Que., [1957]
S.C.R. 285; Northwest Falling Contractors Ltd. v. The
Queen, [1980] 2 S.C.R. 292; (1981), 113 D.L.R. (3d) 1;
Cumings v. Birkenhead Corpn., [1972] Ch. 12 (C.A.);
Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.
(2d) 689.
REFERRED TO:
Associated Provincial Picture Houses, Ltd. v. Wednes-
bury Corpn., [1948] 1 K.B. 223 (C.A.); Thorne's Hard
ware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106;
143 D.L.R. (3d) 577; The Queen v. Robertson (1882), 6
S.C.R. 52; Law Society of Upper Canada v. Skapinker,
[1984] 1 S.C.R. 357; Hunter et al. v. Southam Inc.,
[1984] 2 S.C.R. 145.
COUNSEL:
P. F. M. Jones and D. V. MacDonald for
plaintiffs.
P. Evraire and C. Brenzall for defendants.
SOLICITORS:
McMillan, Binch, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
MCNAIR J.: The case arises from the controver
sial Atlantic seal hunt about which so much has
been seen, heard and told. The great debate has
raged since the mid-sixties but the clamour has
abated of late because of vanishing markets. The
visual spectrum is one of stark and vivid contrast,
ranging from the appealing image of whitecoat
pups in their natural habitat to the grim spectacle
of the sealers doggedly plying their trade on the
icepacks of the Gulf of St. Lawrence and the Front
Area of the North Atlantic off Newfoundland and
Labrador.
The issue is not concerned with the legality or
morality of the hunt per se but rather the question
of the constitutional validity of certain provisions
of the Seal Protection Regulations [C.R.C., c.
833] made under section 34 of the Fisheries Act,
R.S.C. 1970, c. F-14.
The plaintiffs' action is for declaratory relief
and an injunction restraining the defendants, their
servants and agents, from enforcing certain
impugned provisions of the Seal Protection Regu
lations or initiating summary conviction or crimi
nal proceedings in consequence thereof. Declara
tions are sought that the said provisions are
inoperative and unconstitutional in that they con
travene guaranteed rights of freedom of thought,
belief, opinion and expression, including freedom
of the press and other media of communication,
under paragraph 2(b) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)], or, alternatively, that they are
ultra vires the powers of the Governor in Council
to make regulations under section 34 of the Fish
eries Act.
The defendants deny that the plaintiffs' guaran
teed rights and freedoms under the Charter have
been inhibited or curtailed in any way by the Seal
Protection Regulations but, in the event they have,
the defendants say that any such inhibition or
curtailment constitutes reasonable limits pre
scribed by law within the exception afforded by
section 1 of the Charter. They also raise the
question of plaintiffs' status to bring the action.
The plaintiff, Brian Davies, is a remarkable man
of many talents. He came out from Wales in 1955
and joined the famous Black Watch regiment,
serving mostly at CFB Gagetown. On the termina
tion of his engagement in 1961, he became execu
tive secretary of the New Brunswick SPCA. He
was invited by the Minister of Fisheries, Hedard J.
Robichaud, to attend a meeting in Moncton, New
Brunswick, in May 1964 between departmental
officials and representatives of the Canadian seal
ing industry. The meeting failed to convince and
from what he afterwards witnessed on the ice floes,
Davies became adamantly committed to the cause
of total abolition of the seal hunt. He deliberately
chose this course and rejected the option exercised
by others of his compatriots to press the govern
ment for betterment of the hunt conditions and the
preservation of the harp and hood seal species.
Henceforth, he was energetic and unrelenting in
his efforts to spread the abolitionist message
throughout the court of public opinion.
The government, on the other hand, viewed the
hunt as the harvesting of an economic and living
resource that necessitated a system of proper
quotas and humaneness in the method of killing.
In 1964 the government enacted the Seal Protec
tion Regulations [SOR/64-443] establishing li
censing requirements and quota systems for the
seal hunt and prescribing the killing methods.
Section 17 of the Regulations prohibited anyone
from skinning a seal until it was dead. Prior to
1970, public access to the seal hunt was virtually
unrestricted.
In 1966 Davies arranged for Dr. Elizabeth
Simpson, a veterinarian then practising in Freder-
icton, to attend the hunt in the Gulf Area to
observe and report on the humaneness of the kill
ing methods to the NBSPCA. She submitted a
detailed report to her principal, complete with
photographs. Her final conclusion was that the
manner in which the hunt was presently being
conducted gave rise to a great deal of cruelty. The
NBSPCA was quick to circulate the findings of
Dr. Simpson. Because of the controversy occa
sioned by the message, Davies arranged that Dr.
Simpson return to the hunt in 1967. She did and
summarized her findings in an article which was
published in the scientific periodical Nature,
wherein her final conclusion is thus stated:
These post mortem findings suggest that a large percentage of
the hunted animals die in a manner which is of doubtful
humanity.
Public indignation was mounting but the gov
ernment had not been reluctant about summoning
up reserves to counter the abolitionists. In 1971
the government was instrumental in bringing
about the formation of the Committee on Seals
and Sealing (COSS) under terms of reference to
study all aspects of the hunting of seals in the
Arctic and North Atlantic Oceans and to recom
mend changes in the present Regulations to the
Minister. Prominent amongst its members were
Professor Keith Ronald, Dean of the College of
Biological Science at the University of Guelph,
Tom Hughes, Director of the Ontario Humane
Society, Trevor H. Scott, of the International
Society for the Protection of Animals, London,
England, Dr. Harry C. Rowsell, a veterinary
pathologist and Executive Director of the Canadi-
an Council of Animal Care, and other eminent
persons interested in the cause of seals.
In 1968 Davies arranged to have a news team
from the Daily Mirror of London, England, taken
to the ice. One of the cameramen took a photo
graph which was afterwards flashed on the front
page of that newspaper and became something of a
symbol of opposition to the seal hunt. The famous
Canadian author, Farley Mowat, was also in
attendance at the 1968 hunt.
In 1969 Davies broadened the base of attack by
causing the International Fund for Animal Wel
fare, Inc. (IFAW) to be incorporated as a non
profit corporation under the New Brunswick Com
panies Act [R.S. 1952, c. 33]. Public response was
instantaneous and widespread. Meanwhile, Davies
maintained close watch over successive annual
hunts. His energy and zeal were prodigious.
Undaunted by his failure to favourably impress the
Parliamentary Committee before whom he
appeared in 1969, Davies redoubled his efforts
through IFAW to enlist the aid of the media in
spreading the message of the hunt. IFAW assisted
members of the media to get out to the ice on
numerous occasions. Pictures were taken and
events were described and the story of the hunt
was graphically covered by newspapers and TV
stations.
Davies became qualified as a pilot of fixed-wing
and helicopter aircraft with a view of facilitating
IFAW's operation "Air Bridge" for getting media
personnel and protest spokesmen out to the hunt.
He also found time to publish a book under the
fetching title Seal - Song.
Starting in 1970 a number of revisions were
enacted to the Seal Protection Regulations. Heli
copters and other aircraft could no longer be used
in sealing except in searching for seals and then
only under licence from the Minister. Moreover,
the history of the Regulations reflects the govern
ment's growing concern over the question of unre
stricted access to the seal hunt. The 1970 Regula
tions prohibited the landing of a helicopter or
other aircraft within half a nautical mile of any
seal herds in the Gulf Area or Front Area. This
prohibition was repealed by the Regulations of
1974, which substituted the words "any seal" for
the words "any seal herds" in the former Regula
tions. New Regulations were enacted in 1976 to
the effect that no person could land a helicopter or
other aircraft within half a nautical mile of any
seal on the ice in the Gulf Area or Front Area or
operate such aircraft over any seal on the ice at
less than 2,000 feet unless on a scheduled commer
cial flight, except with permission of the Minister.
In 1976 IFAW chose the Front Area as its
target and the base of operations became the small
outport community of St. Anthony on the north
east tip of Newfoundland. IFAW used its own and
five chartered helicopters to ferry a group of media
people to the scene of the hunt. Five airline stewar
desses were brought along for promotional pur
poses. The IFAW helicopter was seized and Davies
was charged with violating the low flying and
landing prohibitions of the Regulations. The case
went to trial and appeal and was finally dismissed
on the ground that the infractions occurred outside
the twelve mile jurisdictional limit.
In mid-March of 1977, St. Anthony again
became the centre of international attention.
Hordes of reporters and cameramen from a
number of different countries descended on St.
Anthony and neighbouring communities to witness
the scene of the hunt about 50 miles or so offshore.
IFAW again became involved in the vital ferrying
operations, despite a telegram from the Minister,
Roméo LeBlanc, warning Davies that the landing
of a helicopter nearer than half a mile of any seal
on the ice was prohibited by the Regulations. The
1977 hunt sparked quite a bit of local hostility and
featured for the first time organized opposition on
the part of hunt proponents.
Davies was again charged with violations of the
Regulations in operating a helicopter over seals on
the ice at less than 2,000 feet and landing less than
half a nautical mile from a seal on the ice. Davies
frankly admitted afterwards to having deliberately
breached the Regulations. In the interim, the gov
ernment by proclamation had extended the off
shore fisheries jurisdiction to 200 miles. Davies
was convicted and eventually had to serve three
weeks in jail and pay a fine of $1,000. The convic
tions also contained a probation order that prohib
ited Davies or any group with which he was
associated from operating a helicopter or other
aircraft in the Front Area or the Gulf Area during
the months of March and April in the years 1978,
1979 and 1980.
The 1977 hunt and its aftermath only served to
arouse more spirited opposition on the part of
Davies and IFAW. They took their case to the
press, charging that the Canadian government had
deliberately adopted a policy of denying newsmen
free access to report on the hunt. The message
they proclaimed is contained in the following quo
tation from Davies' comments at a press confer
ence, as reported in the Medicine Hat News:
Tens of thousands of seals, most of them babies, may be
beaten to death for their skins in order to manufacture trinkets,
but anyone interested in saving the seals, or photographing
them, or writing about them, may not land within half a mile of
a seal or fly at less than 2000 feet.
The government's side of the controversy was
ably summed up by the Prime Minister of the day,
The Right Honourable Pierre E. Trudeau, in this
way:
On the issue of humane killing methods, the same distortions
appear over and over again. It is not a pretty sight; no one could
argue that it is. The fact however, is that the seals are dis-
patched in a more humane manner than most domestic ani
mals. This is supported by the observation of methods com
pleted by animal pathologists who have examined the seals and
have concluded that the present method causes the animal no
suffering. Qualified animal pathologists and representatives of
animal welfare organizations attend the hunt each year to help
government officials ensure that this continues to be the case.
The point that must be kept in mind when considering the
hunt is that the government has a twofold responsibility in this
area. We must ensure that the species is protected from extinc
tion and that hunting methods are humane. We have done this,
and will continue to do so. The second responsibility is to the
people who carry out the activity, the fishermen. For nearly two
centuries they have hunted seals during the difficult winter
months to augment what is for most a very small annual
income. The returns for the approximately 4,000 participants
represents an important part of yearly income in an area which
depends almost totally on marine resources for survival. If we
conclude, as we have, that this activity does not endanger the
species, and that humane methods are used, then it follows that
we have no reason to pass legislation to ban the hunt.
Each side had stated its case and the battlelines
were now drawn.
Repeated applications by IFAW to obtain per
mits for representatives to go to the ice were
turned down. In 1981, IFAW sought a permit to
fly Dr. Eugen Weiss, a German veterinarian, to
the ice for the purpose of performing autopsies on
seal carcasses. A restrictive permit was issued to
this individual to witness the hunt. For some
reason, the restrictions were lifted and Dr. Weiss
was flown to the hunt by the Department. IFAW
contends that he was not then acting under their
auspices. The Weiss permit was the excuse given
by the department for denying a permit to Stephen
Best to get to the ice in 1981. Davies himself was
an observer at the 1981 hunt. Whether by freak of
wind or current, the icepack carried the seals onto
the very shores of Prince Edward Island and
attracted great numbers of unskilled landsmen and
thrill-seekers to join in pursuit of the quarry. By
another quirk of nature, the ice disintegrated very
quickly and many of that years' harvest of white-
coat pups were drowned. The hunt became a disas
ter and the Department moved quickly to end it.
Davies never went back again to observe the hunt.
He continued his efforts, however, to bring about
its permanent demise.
In late 1981 or early 1982, IFAW applied to the
Department for sealing access permits for five
persons, two of whom, Paul F. Howell and Stanley
Johnson, were members of the Parliament of the
European Economic Community (EEC). EEC was
about to debate and vote on a resolution to ban the
importation of seal furs and trinkets, save for those
produced by native Canadian Indians and
Eskimos. The other three were IFAW representa
tives, namely, Davies, Best and Thomas McCol-
lum, a skilled photographer. The requests of the
European Parliament members, Howell and John-
son, were approved but those of the three IFAW
representatives were denied.
On December 10, 1981 Stephen Best wrote a
letter to the Honourable Roméo LeBlanc, Minister
of Fisheries and Oceans, in anticipation of the
advent of the Charter, pointing out that the
restricted access provisions of the Seal Protection
Regulations seemed to violate a number of the
freedoms guaranteed by the Charter. The letter
closed with a request for official clarification as to
whether or not the restrictive provisions of the
Regulations pertaining to the use of helicopters
and other aircraft in proximity to the seals would
be enforced. On February 18, 1982 the Minister
responded through his correspondence secretary in
the following vein:
Dear Mr. Best:
The Minister has asked me to reply to your letter of December
10, 1981, concerning the Seal Protection Regulations as they
relate to the new Canadian Constitution.
Firstly, it is the mandate of the Department of Fisheries and
Oceans to protect and conserve all of our marine populations as
public resources for the benefit of all Canadians. The Seal
Protection Regulations, and all of the Department's other
regulations, are designed to achieve these goals. The Seal
Regulations provide the guidelines for the effective manage
ment of the seal resource and attempt to ensure through
responsible practices that our seal herds continue to grow and
to remain commercially exploitable. Only through the enforce
ment of such regulations can the annual hunt be properly
managed so that it continues to bring a much-needed boost to
fishermen's income during a period of the year when their
finances are particularly low.
In recent years some individuals have gone to great lengths to
discredit this traditional harvest and to disrupt the actual
hunting activity. Consequently, the regulations now have the
dual purpose of protecting the seal population from the danger
of uncontrolled hunting and of protecting the licensed sealers
from the protesters who seek to harass them and to interfere
with their hunting activities. The professional sealers have their
own right "to pursue the gaining of a livelihood", free from
such interference. Moreover, there is an increasingly wide
spread feeling among the sealers that such protesters pose a
threat to their continued access to this source of income. In a
very real sense the seal regulations go a long way towards
protecting the protesters from physical abuse at the hands of
the sealers.
The Minister has asked me to assure you that regardless of the
wording of our new Constitution, this Department will always
uphold the "principles of fundamental justice". The seal regula
tions will continue to protect the seal herds from the dangers of
uncontrolled exploitation, and to protect the licensed sealers
from the uncontrolled excesses of those who would deny the
sealers' right to harvest this renewable resource.
Yours sincerely,
(Sgd) Dixi Lambert
Dixi Lambert
Correspondence Secretary
The regulations subjected to attack in the
present lawsuit are the following provisions of the
Seal Protection Regulations, C.R.C., c. 833, viz.:
Subsections 11(2) and (3)
11. ...
(2) No person shall use a helicopter or other aircraft in
searching for seals unless he has an aircraft sealing licence
issued by the Minister.
(3) An aircraft sealing licence may be issued only in respect
of an aircraft registered in Canada under Part II of the Air
Regulations made pursuant to the Aeronautics Act.
Paragraphs 11(5)(a) and (b)
11. ...
(5) Except with the permission of the Minister, no person
shall
(a) land a helicopter or other aircraft less than 1/2 nautical
mile from any seal that is on the ice in the Gulf Area or
Front Area; or
(b) operate a helicopter or other aircraft over any seal on the
ice at an altitude of less than 2,000 feet, except for commer
cial flights operating on scheduled flight plans.
Subsection 11(6) (SOR/78-167, s. 3)
11. ...
(6) No person shall, unless he is the holder of a licence or a
permit, approach within half a nautical mile of any area in
which a seal hunt is being carried out.
The first issue concerns the constitutional validi
ty of the above mentioned provisions of the Seal
Protection Regulations, which the plaintiffs have
challenged in their action by invoking paragraph
2(b) of the Charter. The question thus raised for
determination is whether the Regulations deny to
the plaintiffs their guaranteed right of freedom of
expression within the meaning of paragraph 2(b)
of the Charter. This right, it is contended, must be
seen to include "freedom to seek, receive and
impart information and ideas of all kinds", wheth
er by the written or spoken word or photography
or whatever other media of communication might
be chosen. Although IFAW is unquestionably a
redoubtable protester, the gist of the case is not
concerned with the right to protest per se. The
plaintiffs' evidence is that they have never deliber
ately interfered with the sealers. Their avowed
objective is access to information rather than alter
cation and confrontation.
It is now settled beyond doubt or question that
the Charter is a constitutional document of the
living tree genus that must be accorded a large,
liberal and purposive interpretation in respect of
the enshrined rights guaranteed thereby. A judicial
analysis of whether a Charter right has been
infringed involves a two-stage inquiry. The ques
tion to be addressed in the first stage of inquiry is
whether the specific right and freedom, viewed
generously and purposively, has been violated by
the law that has been challenged. If it transpires
that it has then this launches stage two of the
inquiry which brings into play section 1 of the
Charter where the issue becomes that of determin
ing whether the challenged law represents "such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society". The burden of persuading a court that
this is so rests on the party asserting the affirma
tive of the issue and the appropriate standard of
proof is weighed by the preponderance of probabil
ity test. See Law Society of Upper Canada v.
Skapinker, [1984] 1 S.C.R. 357; Hunter et al. v.
Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M
Drug Mart Ltd. et al., [1985] 1" S.C.R. 295; 18
D.L.R. (4th) 321; 58 N.R. 81; and R. v. Oakes,
[1986] 1 S.C.R. 103.
In R. v. Big M Drug Mart Ltd., supra, Dickson
J. [as he then was], for the majority, held that the
initial test of constitutionality must be whether or
not the legislation's purpose is valid; the legisla-
tion's effects need only be considered when the law
under review has passed the purpose test. The
effects test can never be relied on to save legisla
tion with an invalid purpose. The minority
member, Wilson J., took the contrary view that the
Charter was "an effects-oriented document" so
that an evaluation of legislative impingement on
fundamental rights and freedoms fell to be deter
mined according to whether or not the impugned
legislation "had the effect of violating an
entrenched individual right". The learned Judge
agreed with her majority colleagues on the broad
issue of section 1 consideration, stating at pages
361 S.C.R.; 373 D.L.R.; 121 N.R.:
... the analysis required under s. 1 of the Charter will entail an
evaluation of the purpose underlying the impugned legislation.
I agree with Dickson J. when he states in his reasons that s. 1
demands an assessment of the "government interest or policy
objective" at stake, followed by a determination as to whether
this interest is of sufficient importance to override a Charter
right and whether the means chosen to achieve the objective are
reasonable.
One of the justificatory criteria for measuring
any governmental limitation on guaranteed rights
and freedoms is the concept embraced by the
words "free and democratic society", which are
multifarious in their scope and application. Dick-
son C.J., assayed but a few of the embodiments in
R. v. Oakes, supra, and drew this conclusion at
page 136 S.C.R.:
The underlying values and principles of a free and democratic
society are the genesis of the rights and freedoms guaranteed
by the Charter and the ultimate standard against which a limit
on a right or freedom must be shown, despite its effect, to be
reasonable and demonstrably justified.
The rights and freedoms guaranteed by the Charter are not,
however, absolute. It may become necessary to limit rights and
freedoms in circumstances where their exercise would be inimi
cal to the realization of collective goals of fundamental impor
tance. For this reason, s. 1 provides criteria of justification for
limits on the rights and freedoms guaranteed by the Charter.
These criteria impose a stringent standard of justification,
especially when understood in terms of the two contextual
considerations discussed above, namely, the violation of a con
stitutionally guaranteed right or freedom and the fundamental
principles of a free and democratic society.
The fact remains that most Charter cases
involve the striking of a balance between the legiti
mate social and collective goals of the state and
some guaranteed right and freedom of the
individual. The governmental interest or policy
objective must be one of sufficient importance to
justify the overriding of a Charter right and the
means adopted for its implementation must be
reasonable. It can scarcely be gainsaid that a free
and democratic society is an open society that
accepts diversity of belief and accommodates free
dom of opinion and expression.
Rand J., eloquently resounded this theme in
Switzman v. Elbling and A.-G. Que., [1957]
S.C.R. 285, long before the advent of the Charter,
when he said at page 306:
... Canadian government is in substance the will of the majori
ty expressed directly or indirectly through popular assemblies.
This means ultimately government by the free public opinion of
an open society, the effectiveness of which, as events have not
infrequently demonstrated, is undoubted.
But public opinion, in order to meet such a responsibility,
demands the condition of a virtually unobstructed access to and
diffusion of ideas.
Freedom itself was thus defined by Dickson J.,
in the Big M Drug Mart case at page 337:
Freedom in a broad sense embraces both the absence of coer
cion and constraint, and the right to manifest beliefs and
practices. Freedom means that, subject to such limitations as
are necessary to protect public safety, order, health, or morals
or the fundamental rights and freedoms of others, no one is to
be forced to act in a way contrary to his beliefs or his
conscience.
The plaintiffs rely on Article 19 of the Interna
tional Covenant on Civil and Political Rights
[[1976] Can. T.S. No. 47] to support their argu
ment that the language of paragraph 2(b) of the
Charter must be taken to contemplate freedom to
seek, receive and impart information on the seal
hunt. Article 19 guarantees freedom of expression
and states:
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It
may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order
(ordre public), or of public health or morals.
The rule is well established that an enactment
should be interpreted, as far as practicable and its
language admits, in conformity with the rules of
international law. Canada acceded to the Cove
nant on May 1.9, 1976. The plaintiffs contend that
the terms of the Article are relevant to the inter
pretation of paragraph 2(b) of the Charter, and I
am bound to agree. In R. v. Oakes, supra, the
Chief Justice utilized another provision of the
Covenant as an aid in the interpretation of the
presumption of innocence language of paragraph
11(d) of the Charter.
Subsection 24(1) of the Charter provides as
follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
The subsection is clearly intended to grant a
remedy to anyone whose Charter rights and free
doms have been infringed. The plaintiffs' action
for declaratory and injunctive relief falls within
the ambit of this provision. The Charter became
law on April 17, 1982 and operates prospectively
only from that date. Initially, I had some concern
that the events relating to the infringements of
which plaintiffs complain occurred for the most
part prior to the enactment of the Charter. Coun
sel are agreed that the Seal Protection Regula
tions, leaving aside the issue of their constitution
ality, operate as a continuing restraint against the
plaintiffs so that the issue of retroactivity is not
germane to the proper determination of the case.
On the issue of constitutionality, it is the plain
tiffs' contention that the impugned provisions of
the Seal Protection Regulations violate their right
of free access to information contrary to paragraph
2(b) of the Charter. It is further contended that
the regulatory prohibitions against landing or
flying an aircraft in proximity to any seal on the
ice have the effect of rendering meaningless any
licence or permit to approach within half a nauti
cal mile of an area where a seal hunt is being
carried out. The plaintiffs also submit that IFAW
is a member of the media. I cannot accept this last
mentioned submission. The defendants contend, on
the other hand, that the right of freedom of
expression is limited to the dissemination of ideas
and beliefs in the expressible sense and does not
comprehend the broader aspect of access to infor
mation as the fountain-head for the formulation
and expression of those ideas and beliefs. Alterna
tively, it is argued that if there is such a right of
free access to information then the limitations
imposed by the Regulations are justifiable limits
within the meaning of section 1 of the Charter.
Sections 1 and 2(b) of the Charter state:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
An expansive and purposive scrutiny of para
graph 2(b) leads inevitably, in my judgment, to the
conclusion that freedom of expression must include
freedom of access to all information pertinent to
the ideas or beliefs sought to be expressed, subject
to such reasonable limitations as are necessary to
national security, public order, public health or
morals, or the fundamental rights and freedoms of
others.
Much of the underpinning of the plaintiffs' case
rests on a memorandum submitted by Donald D.
Tansley, Deputy Minister, to the Honourable
Roméo LeBlanc sometime during the latter part of
1978. The memorandum dealt with objectives and
policies for controlling access to the sealing opera
tions in 1979 and sets out a number of alternative
policy options and conclusions. The stated objec
tives to which the plaintiffs take most exception
are the following:
a. to reduce adverse national and international publicity on
sealing
b. an ostensible mechanism for reducing interference with the
sealing operations.
The plaintiffs make much play of the word
"ostensible". The face page of the memorandum
indicated that the majority consensus of those
involved with the Seal Protection Regulations
favoured the view that a limited number of pro
testers should be permitted access to the 1979
sealing operations for observational purposes only.
It is true that the memorandum dealt with the pros
and cons of a number of policy alternatives but
there is no compelling evidence that the underlying
purpose was the suppression of freedom of opinion
and expression. In my view, the Tansley memoran
dum is relatively innocuous and largely inconclu
sive.
More telling from the plaintiffs' standpoint is a
news release from the Honourable Roméo LeBlanc
dated February 28, 1978 wherein the Minister
explained the Regulations requiring a permit or
licence for any person to visit the immediate area
of the seal hunt. The Minister explained that the
purpose of the amendments to the Regulations was
to prohibit unjustifiable interference in the lawful
activities of the sealers rather than to prevent
legitimate observation of the seal herds. He went
on to make this further statement regarding the
issuing of permits and licences:
We will not, however, allow persons or groups near the sealing
operations whose announced intention is to interfere with the
livelihood of authorized and licensed fishermen.
A departmental circular of February 16, 1982
respecting procedures and guidelines for visitors'
permits repeated the admonition that permits
would not be issued "to individuals or groups
whose stated objective is to disrupt the hunt".
The question thus posed is this: were the Regu
lations aimed at the conservation and protection of
seals and the proper management and control of
the seal fishery, having regard to the seal harvest
in light of its historic and traditional origins and
the rights of those who earned a living therefrom,
or was the paramount purpose that of suppressing
freedom of expression? In my opinion, the purpose
behind the Regulations was a perfectly valid one.
Nonetheless, the actual effect was to impinge on
the plaintiffs' right of freedom of expression en
shrined in the Charter in the broad connotation of
freedom of access to information. Prima facie,
their right has been violated and it becomes neces-
sary to turn now to section 1 of the Charter to
determine whether the limit is one that is "reason-
able" and "demonstrably justified in a free and
democratic society".
Hogg, Constitutional Law of Canada, 2nd ed.,
makes this significant statement in reference to
section 1 consideration at page 688:
In the end, Charter cases will not be decided by a nice
parsing of the words and phrases in s. 1. What is called for is a
weighing of three factors: (1) the importance of the Charter
right that has been infringed; (2) the extent of the infringe
ment; and (3) the importance of the governmental interest
asserted in justification. The significance of the phrase "demon-
strably justified" is that a court must be satisfied that factor
(3) clearly outweighs the combined effect of factors (1) and
(2). This is an ineluctably discretionary judgment by a court
which cannot easily be captured in any verbal formula.
The burden of proof of justification rests on the
defendants as the proponents of the impugned
legislation. What kind of proof is required? The
answer is far from clear. The prevailing view is
that there should be sufficient cogent evidence to
persuade the court as to the reasonableness of the
limitation in terms of striking a balance between
legitimate social interests and the rights of the
individual, except in cases where this is obvious
and self-evident: per Dickson C.J., in R. v. Oakes,
supra, at page 138. In the latter situation, strong
submissions would probably suffice to tip the scale.
In other cases the evidence of justification could
conceivably take the form of social science reports
or studies. The modes of proof will undoubtedly
vary according to the circumstances of the particu
lar case.
The Prime Minister made a statement concern
ing the 1977 conviction of Brian Davies in which
he stated that the purpose of the regulatory prohi
bitions against landing or flying an aircraft near
any seal on the ice was to bring to an end the
former unregulated and extremely hazardous prac
tice of hunting seals by aircraft. Henceforth, hunt
ers could only approach the site of the hunt by
ship. There is other evidence to the same effect.
There is no compelling evidence that the purpose
of the Regulations was to deny access to the news
media. In fact, all indications point the other way.
In 1982 there were forty-nine requests for observer
permits to view the hunt of which eight were
refused, including the three representatives of
IFAW. Of the forty-one requests granted, the bulk
were to members of the media. Similarly, in 1983
nineteen requests for permits were made, of which
fifteen were granted and four were refused.
Among those granted, nine were to media
personnel.
What other justifications are there, if any, for
the stringent prohibition against landing or flying
aircraft close to any seal on the ice? I find on the
evidence that the presence of low-flying aircraft
would cause some dispersion of the seal herds. Dr.
David Lavigne, the plaintiffs' principal expert on
seals, confirmed this during his testimony. Davies
himself honestly admitted to it. The fact was also
unequivocally corroborated by the evidence of
Messrs. Renaud and Small, sealing captains of
many years proven experience. The evidence also
established that buzzing aircraft would disrupt the
normal pattern of nursing behaviour between
mother seal and whitecoat pup but the quantifiable
extent of actual detriment was left to conjecture
and inference. Conceivably, there would have to be
some.
Was the governmental restriction against active
protestors reasonable in the circumstances? There
is something of a fine line between the activity of
searching for information to mount an effective
protest against a lawful commercial activity and
the act of protesting that activity at the very scene
of operations. The sealers were becoming sensitive
to the fanfare and reluctant to have their photo
graphs taken. The sealers were perceived by the
government as an important social, economic and
political constituency and the governmental objec
tive was to recognise their right to pursue their
livelihood free from the interference of protestors.
The ice pans are no place to stage a protest. This
was the firm conviction of senior fisheries protec
tion officer, Stanley Dudka, born of long experi
ence at the scene of many hunts. He alluded to five
occasions over the years when he had to rescue
Davies or some of his compatriots because of
weather conditions or other adversities.
Dr. Lavigne related the eerie personal experi
ence of having crossed an ice pan in the morning
on his way to the hunt and retracing his steps in
the afternoon to find that his footprints were
obliterated because the ice pan which he had
earlier traversed had afterwards done a complete
flip-flop in the leads of open water. Safety alone
would necessarily impose some restriction of free
access.
Based on the totality of evidence, it is my opin
ion that the collective governmental interest of
protecting both the seals and the fundamental
right of the sealers to pursue their historical avoca
tion clearly outweighs the plaintiffs' enshrined
right of freedom of access to information. In the
result, the limitations prescribed by the Seal Pro
tection Regulations are reasonable in the circum
stances and demonstrably justifiable by the
normal, perceptive standards of a free and demo
cratic society.
The next point is that of ultra vires.
The plaintiffs take the position that the Seal
Protection Regulations are not authorized by the
empowering statute in that they go far beyond
"the purposes and provisions" of the Fisheries Act
by imposing limitations that are inconsistent there
with or superfluous thereto and by prohibiting
conduct that is not linked to actual or potential
harm to the fishery. The defendants' answer is that
the Regulations must be read in context and in
keeping with the scheme of the Act as a whole.
Section 2.1 of the Fisheries Act [as enacted by
S.C. 1985, c. 31, s. 2] states, inter alia, the follow
ing purposes:
2.1 The purposes of this Act are
(a) to provide for the conservation and protection of fish and
waters frequented by fish;
(b) to provide for the proper management, allocation and
control of the seacoast fisheries of Canada;
Seals, as a species of marine animals, are
brought within the definition of "fish" in the inter
pretation section [section 2 of the Act]. Section 34
of the Act deals with the power to make regula
tions which, for the purposes of this case, are
contained within the following provisions:
34. The Governor in Council may make regulations for
carrying out the purposes and provisions of this Act and in
particular, but without restricting the generality of the forego
ing, may make regulations
(a) for the proper management and control of the seacoast
and inland fisheries;
(b) respecting the conservation and protection of fish;
By virtue of the interpretation section, the sea
coast fisheries would include not only the locale of
the Canadian fisheries waters where fishing and
related activities occur but also the persons
engaged in the fishery and their vessels, gear and
equipment [section 2 of the Act (as am. by S.C.
1985, c. 31, s. 1)].
It is now authoritatively settled that the fisheries
are a public resource within the legislative compe
tence of the Parliament of Canada as a matter of
national and general concern that does not fall
within the local purview of the "property and civil
rights" jurisdiction of the provinces. The power to
control and regulate that resource must include
the authority to protect all those creatures which
form part of it: see The Queen v. Robertson
(1882), 6 S.C.R. 52, at pages 120-121; and North
west Falling Contractors Ltd. v. The Queen,
[1980] 2 S.C.R. 292; (1981), 113 D.L.R. (3d) 1.
The question in Northwest Falling Contractors
Ltd. v. The Queen, supra, was whether subsection
33(2) of the Fisheries Act which prohibited any
person from depositing a deleterious substance in
water frequented by fish was ultra vires. The
Supreme Court held that the section was intra
vires of the Parliament of Canada because the
definition of "deleterious substance" was such as
to ensure that the scope of subsection 33(2) was
restricted to the prohibition of deposits that threat
ened fish, fish habitat or the use of fish by man.
Martland J., in giving the decision of the Court,
made this statement at pages 299-300 S.C.R.; 6
D.L.R.:
The meaning of the word "fishery" was considered by New-
combe J. in this Court in Reference as to the Constitutional
Validity of Certain Sections of the Fisheries Act, 1914, at
p. 472:
In Patterson on the Fishery Laws (1863) p. 1, the defini
tion of a fishery is given as follows:
A fishery is properly defined as the right of catching fish
in the sea, or in a particular stream of water; and it is also
frequently used to denote the locality where such right is
exercised.
In Dr. Murray's New English Dictionary, the leading defini
tion is:
The business, occupation or industry of catching fish or of
taking other products of the sea or rivers from the water.
The above definitions were quoted and followed by Chief
Justice Davey in Mark Fishing Co. v. United Fishermen &
Allied Workers Union, at pp. 591 and 592. Chief Justice Davey
at p. 592 added the words:
The point of Patterson's definition is the natural resource,
and the right to exploit it, and the place where the resource is
found and the right is exercised.
Plaintiffs' counsel relies strongly on the
Supreme Court decision in Fowler v. The Queen,
[1980] 2 S.C.R. 213; (1981), 113 D.L.R. (3d) 513.
The case raised the constitutional issue of whether
subsection 33(3) of the Fisheries Act was within
the legislative competence of the Parliament of
Canada, and directly involved a conflict between
the federal legislative competence in relation to the
fishery and subject matters of provincial jurisdic
tion, including property and civil rights. Subsec
tion 33(3) prohibited anyone engaged in logging
operations from putting any slash or other debris
into any water frequented by fish. The appellant
had been prosecuted on two counts under the
section and was acquitted at trial and convicted on
appeal. The Supreme Court allowed the appeal
and restored the acquittal at trial. The ratio is thus
stated by Martland J., at pages 226 S.C.R.; 521-
522 D.L.R.:
Subsection 33(3) makes no attempt to link the proscribed
conduct to actual or potential harm to fisheries. It is a blanket
prohibition of certain types of activity, subject to provincial
jurisdiction, which does not delimit the elements of the offence
so as to link the prohibition to any likely harm to fisheries.
Furthermore, there was no evidence before the Court to indi
cate that the full range of activities caught by the subsection
do, in fact, cause harm to fisheries. In my opinion, the prohibi
tion in its broad terms is not necessarily incidental to the
federal power to legislate in respect of sea coast and inland
fisheries and is ultra vires of the federal Parliament.
Interestingly enough, the Court utilized the
same definition of "fishery" to which resort was
had in the Northwest Falling Contractors case.
In Northwest Falling Contractors, Martland J.,
distinguished the Fowler decision in this way at
pages 301 S.C.R.; 7-8 D.L.R.:
The situation in this case is different from that which was
considered in Dan Fowler v. Her Majesty The Queen, a judg
ment of this Court recently delivered. That case involved the
constitutional validity of subs. 33(3) of the Fisheries Act and it
was held to be ultra vires of Parliament to enact. Unlike subs.
(2), subs. (3) contains no reference to deleterious substances. It
is not restricted by its own terms to activities that are harmful
to fish or fish habitat.
The learned Judge went on to quote the passage
from his judgment in the Fowler case which point
ed out that the prohibitory subsection there made
no attempt to link the proscribed conduct to actual
or potential harm to fisheries.
The Fowler case bears another distinguishing
facet from the case at bar in that the constitutional
conflict was between the federal and provincial
fields of legislative competence. That issue does
not arise here, where the real point of ultra vires is
whether the Regulations were made by the Gover
nor in Council for carrying out the purposes and
provisions of the Fisheries Act in terms of the
proper management and control of the seacoast
and inland fishery and the conservation and pro
tection of seals. Unlike Fowler there is ample
evidence to show that the full range of the activi
ties complained of are in fact within the purposes
and provisions of the empowering Act. The defini
tion of "fishery" in the Fisheries Act includes the
sealers as persons engaged in the seal fishery. The
law recognises the fishery as a natural and public
resource that embraces not only the marine ani
mals themselves but the business of sealing in the
context of the right to legitimately exploit the
resource in the place where it is found and the
right is lawfully exercised. In my opinion, the Seal
Protection Regulations are intra vires as being
within the purposes and provisions of the Fisheries
Act by reason that they are Regulations made for
the proper management and control of the sea
coast fisheries and for the conservation and protec
tion of seals. In the result, the plaintiffs' argument
of ultra vires must fail.
Finally, the plaintiffs contend that the Minis
ter's refusal to grant them permits constituted an
improper exercise of ministerial discretion in that
the policy rationale underlying such refusal was
aimed at the reduction of adverse publicity on the
seal hunt. In other words, the ministerial discretion
was exercised for an unauthorized purpose.
It is clear on principle that an administrative or
public authority must exercise its discretionary
powers in good faith and for an authorized statu
tory purpose. Whether such powers must be exer
cised reasonably is something of a moot point.
Generally speaking, the test of relevancy is to be
preferred over that of reasonableness except in
those rare cases where the administrative decision
is so manifestly unreasonable that no reasonable
person could ever have sensibly come to it. Indeed,
the connection between irrelevancy and unreason
ableness is so close that the one, more often than
not, blurs over into the other. One thing is clear—
the repository of a statutory power must have
regard to relevant considerations and not allow
itself to be influenced by irrelevant considerations.
In final analysis, unreasonableness may become a
criterion for challenging administrative action
where the authority exercising the discretion has
deviated from the path of relevancy in coming to
its decision: 1 Halsbury's Laws of England, 4th
ed., paras. 20 and 62; deSmith, Judicial Review of
Administrative Action, 4th ed., pages 346-348;
Reid and David, Administrative Law and Practice,
2nd ed., page 315; Associated Provincial Picture
Houses, Ltd. v. Wednesbury Corpn., [1948] 1 K.B.
223 (C.A.); Cumings v. Birkenhead Corpn.,
[1972] Ch. 12 (CA.); Roncarelli v. Duplessis,
[1959] S.C.R. 121; 16 D.L.R. (2d) 689; and
Thorne's Hardware Ltd. et al. v. The Queen et al.,
[1983] 1 S.C.R. 106; 143 D.L.R. (3d) 577.
Lord Denning M.R., put it this way in Cumings
v. Birkenhead Corpn., supra, at page 36:
It is well settled that, when a public authority is given an
administrative discretion, it must exercise its discretion fairly.
It must be guided by relevant considerations and not by irrele
vant considerations.
Rand J., stated his version of the principle in the
Roncarelli case at pages 140 S.C.R.; 705 D.L.R.:
... no legislative Act can, without express language, be taken
to contemplate an unlimited arbitrary power exercisable for
any purpose, however capricious or irrelevant, regardless of the
nature or purpose of the statute ... "Discretion" necessarily
implies good faith in discharging public duty; there is always a
perspective within which a statute is intended to operate; and
any clear departure from its lines or objects is just as objection
able as fraud or corruption. [Emphasis added.]
In Roncarelli the permanent revocation of the
restaurateur's liquor licence was held to be without
legal justification because it was expressly done to
punish the licensee for acts that were wholly irrele
vant to the licensing statute.
The question comes down to this: did the Minis
ter exercise his discretion within the four corners
of the matters which he was obliged to consider in
refusing permits to the plaintiffs? The policy of
the government was to protect the sealers in their
means of livelihood from interference by protest
ers. The Minister laid down the policy that permits
would not be issued to persons or groups whose
stated objective was to disrupt the seal hunt. The
policy was aimed at all active protesters and did
not single out the plaintiffs as a particular target
of oppression. Under the circumstances, I find that
the Minister exercised his discretion properly,
having regard to the purposes of the empowering
enactment and its subject-matter in terms of the
management and control of the seal fishery. In my
opinion, there is no ground for challenging the
exercise of ministerial discretion in this instance.
The plaintiffs' claim for injunctive relief crum
ples with the constitutional linch-pins of their case.
Consequently, it is unnecessary to determine the
vexing question of whether an injunction will lie in
a proper case against a Minister of the Crown
purporting to act under statutory authority in a
manner contrary to law.
For the foregoing reasons, the plaintiffs' action
is dismissed, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.